Will repeal work?

posted at 1:36 pm on March 1, 2010 by Ed Morrissey

More and more, activists have called for Republican candidates in the midterms to take a stand on ObamaCare by announcing whether they will support a repeal effort in 2011. The Washington Examiner amplifies these calls in its lead editorial today. But can Republicans actually repeal ObamaCare if it passes in 2010?

Among the most perplexing aspects of the Obamacare debate has been the apparent determination of Democrats to approve the proposal no matter what the consequences might be for their party come November and regardless of the growing public opposition to it. Were there not something radically wrong in the contemporary political system, President Obama, House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid would realize the time had come to back off, heed the clearly documented public will and adopt a more moderate position. Instead, they plunge forward, vowing to “go it alone” with only Democrat votes to pass Obamacare if necessary.

The problem here is the far Left controls the Democratic Party at the national level, and its radical ideology trumps political prudence. For these ideologues, winning at any cost is the bottom line. But they aren’t entirely blinded by ideology: They have calculated that now is their prime chance to turn what remains of the private health care system over to federal bureaucrats, thus finally achieving a dream of 19th-century progressive theorists and 20th-century welfare state liberal politicians. If that costs Democrats their congressional majorities in November, so be it because they are confident Republicans won’t have the political courage to repeal Obamacare. …

The only way to change that calculation is for the GOP to make crystal clear now that its first order of business come January 2011 will be repeal if it is returned to congressional majorities and Obamacare is on the books. Senate Minority Leader Mitch McConnell and House Minority Leader John Boehner have magnificently held their troops in line to date against Obamacare while saying nothing about repeal for fear of appearing to concede defeat. That changed Sunday as Sen. Lamar Alexander, R-Tenn., said, “People are saying, ‘We don’t want it.’ The Democrats are saying, ‘We don’t care, we’re doing it anyway.’ The Democrats will try to jam this through, and the rest of the year we’re going to be involved in a campaign to repeal it.”

The issue isn’t so much political courage as it is political strength. Once a bill passes into law, it takes another law to repeal it. That means that it either requires the signature of the President, or enough votes in both chambers of Congress to override his veto. In 2011, it’s doubtful that Republicans will control two-thirds of the House, and just getting to a majority in the Senate will be an almost-miraculous accomplishment. Since the Democrats that might go along with a repeal movement are the ones most likely to lose to Republicans in the upcoming midterms, they will have few allies across the aisle with which to carry a veto override, even assuming they can pass a repeal.

That doesn’t mean that the Republicans won’t have some tools with which to fight ObamaCare in 2011, assuming they gain control of Congress. The bureaucracies formed by the bill have to get funded starting in 2012 and 2013, budgets which Republicans would control in Congress. They can also pass other legislation, such as allowing interstate sales of health-insurance policies, to counteract the ObamaCare effort and attempt to rationally deal with pricing issues.

Unfortunately, a full repeal would require a new President in 2013, which is when the ObamaCare services are slated to begin. The best way to derail ObamaCare is to keep it from passing now — but if it does, Republicans have to limit the damage until they control the White House and can dismantle the bill entirely. Demanding a repeal effort in 2011 is laudable for its focus on the issue, but highly unrealistic in setting expectations for Republicans while Obama remains in office.

Update: Keith Hennessey outlines how Republicans can fight reconciliation in a must-read post.

This policy is in sync with Soros, but it is still all Precedential. The Precedent came into office looking to destroy us and it was only his great contempt for us and our system that allowed him to run amok through our legislative processes and make a mockery of everything he has touched. And, if he’s successful and manages to retain power through it (which I highly doubt – that he would retain power, especially as I have seen him on a suicide bomber mission for this) he’ll go after Soros next. The Precedent hates the Europeans as much as he hates Americans, even the useful idiot Euros.

For The Precedent, this is all Third World versus First/Western World. Soros has other issues and considerations driving him.

I looked at the 20 or so states north and west of Texas. Looked like 12 of them had non-economic caps of $250,000, with several others having caps in the $300K-$500K range or caps on overall damages.

Jimbo3 on March 1, 2010 at 2:56 PM
So there are 50 states plus District of Columbia, and 12 is “quite a few”?

Wethal on March 1, 2010 at 2:58 PM

–12/20 is a majority and a clear majority of the 20 if you go with the higher caps. I’ve looked at another fifteen states; it seems that about 65-70% of the states have some sort of cap on non-economic damages. Surprisingly, Wyoming and Nebraska don’t and there is no hard cap (only the ability to ask for a review) in one of the Dakotas. I would have thought all three would have adopted this provision.

Chuckles, from little snotballs, decided to gather Hotair psosts that had raised legitimate points about those issues and allah&Co. got their panties in a wad about it. So they did a little banning and brought in an industrial strength moderation filter, to get back on chuckles’ good side. It’s a sad, pathetic story.

This is a new awakening in this country, and people are starting to realize what’s at stake.

When even the DJ on the local classic rock station says he agrees with the CNN poll that 56% see the government as the main threat to our liberties and freedoms, there is definitely something transformational happening in this country.

I understand that politicians always have to mouth platitudes if they think the voting public is too stupid to grasp the real truth , i.e. “handle” it.

speaking of which, everyone, dems and republicans both, almost TO THE MAN!(and woman!) goes on and on self-righteously flapping their gums about how we need to get rid of the dread “pre-existing conditions” clause in health care insurance. …

Now, why the hell would anyone buy health insurance when they’re not sick if they knew they could just wait til they got sick, then start buying in?

How many times have we been told that it is dead and now we are talking about repeal?

Blake on March 1, 2010 at 3:18 PM

Yep. Because too many of the GOP, and on the right, never had the courage to treat it as dead. That will not change, so this thing will continue to limp along, and might make it through by attrition, as the fearful dems are re-energized every time they see it rise from the dead and continue on its march and the public just gets worn out.

1. Technically, ObamaCare would not be an entitlement (its mandates are arguably the opposite of an entitlement).

2. Congress repealed the Medicare Catastrophic Coverage Act of 1988 after angry mobs chased people like Rep. Rostenkowski down the street and attacked his car.

3. That being said, repeal and defunding are clearly last-chance strategies.

Karl on March 1, 2010 at 1:45 PM

To the casual observer it seems that when democrats are in power, they create legislation under what can be perceived by the average American citizen as “MAKE-WORK” for republicans to stop from becoming a reality if possible, or outright reverse once it’s passed. Reasonable people in leadership positions do not behave this way. When people are unable to come together and compromise in a rational manner, “MAKE-WORK” draconian legislation policies become the norm and not the exception. How much time and billions of taxpayer money could be saved if we elected statesman instead of ideological zealots? Hence, the way forward will always be elect people prone to govern from a center right mindset. It reflects the majority of the country. Why can’t this be accomplished? Is it because the masses have been dumbed down too far to comprehend, or could it be we were too busy with our own lives to care?

So what is the GOP going to do if Obama cuts back his bill, allows the sale of insurance across state lines and does limit non-economic damage awards nationally?

Jimbo3 on March 1, 2010 at 3:21 PM

Given how much the plaintiffs’ bar contributed to his campaign, a had and fast dollar-amount cap is unlikely. WSJ had an article on in the last few months. The lawyers and unions own Obama. There are too many Dem Congressmen who also rely on lawyer contributions.

There have been some Dems in Congress who also talk about eliminating the IRA, and having a federally administered pension plan instead. Guaranteed 5% annual return, and you can leave 50% to your family. (You know who gets the other half.)

Powerline, I think, had a great post pointing out Obama would never do it, as the trial lawyers have some pretty big IRAs. The legal business can go up and down, so a profits-sharing firm pension plan doesn’t always provide long-term security. The plaintiffs’ bar would never allow him to take away the tax sheltering of IRAs.

So what is the GOP going to do if Obama cuts back his bill, allows the sale of insurance across state lines and does limit non-economic damage awards nationally?

Jimbo3 on March 1, 2010 at 3:21 PM
Will the ridiculously un-Constitutional pieces still be in the bill?

Not that this has anything to do with the GOP, but I’m just trying to understand what you are proposing.

neurosculptor on March 1, 2010 at 3:25 PM

Given how much the plaintiffs’ bar contributed to his campaign, a had and fast dollar-amount cap is unlikely. WSJ had an article on in the last few months. The lawyers and unions own Obama. There are too many Dem Congressmen who also rely on lawyer contributions.

There have been some Dems in Congress who also talk about eliminating the IRA, and having a federally administered pension plan instead. Guaranteed 5% annual return, and you can leave 50% to your family. (You know who gets the other half.)

Powerline, I think, had a great post pointing out Obama would never do it, as the trial lawyers have some pretty big IRAs. The legal business can go up and down, so a profits-sharing firm pension plan doesn’t always provide long-term security. The plaintiffs’ bar would never allow him to take away the tax sheltering of IRAs.

Wethal on March 1, 2010 at 3:29 PM

–We’ll have to see. I think he might well try for a $250K (or similar) dollar caps, since most states already have those caps. But I don’t think there’s anything unconstitutional in the current bill (I know some of you disagree).

Eliminating defensive medicine could save upwards of $200 billion in health-care costs annually, according to estimates by the American Medical Association and others. The cure is a reliable medical malpractice system that patients, doctors and the general public can trust.

But this is the one reform Washington will not seriously consider. That’s because the trial lawyers, among the largest contributors to the Democratic Party, thrive on the unreliable justice system we have now.

Almost all the other groups with a stake in health reform—including patient safety experts, physicians, the AARP, the Chamber of Commerce, schools of public health—support pilot projects such as special health courts that would move beyond today’s hyper-adversarial malpractice lawsuit system to a court that would quickly and reliably distinguish between good and bad care. The support for some kind of reform reflects a growing awareness among these groups that managing health care sensibly, including containing costs, is almost impossible when doctors go through the day thinking about how to protect themselves from lawsuits.

The American public also favors legal overhaul. A recent Common Good/Committee for Economic Development poll found that 83% of Americans believe that “as part of any health care reform plan, Congress needs to change the medical malpractice system.”

Congress now realizes it can’t completely stonewall legal reform. But what has unfolded so far is a series of vague pronouncements and token proposals—all of which assiduously avoid any specific ideas that might offend the trial bar. Here are some examples:

What happened? According to the online newsletter Inside Health Policy, “While Gordon’s amendment originally had seven policies that states could implement in order to receive federal funding, the other five suggestions were crossed out . . . due to the agreement with the trial lawyers.”

• On Aug. 25, at a town-hall meeting in Reston, Va., Howard Dean, former chair of the Democratic National Committee, was asked why there is nothing in the health-care proposals about liability reform. Mr. Dean replied: “The reason that tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers. . . . And that is the plain and simple truth.”

• On Sept. 9, President Obama made a commitment in a speech before Congress to fix the problem of defensive medicine. On Sept. 17, his secretary of Health and Human Services, Kathleen Sebelius, announced an initiative that will allow states to test a variety of programs to “put patient safety first and let doctors focus on practicing medicine.” But in the initiative’s statement of goals made no mention of defensive medicine, or of pilot projects such as special health courts. The funding for the initiative is a tiny $25 million. According to Katharine Seelye on the New York Times’s Prescriptions blog, “the comparatively small budget seems commensurate with the administration’s level of interest in the subject.”

The upshot is simple: A few thousand trial lawyers are blocking reform that would benefit 300 million Americans. This is not just your normal special-interest politics. It’s a scandal—it is as if international-trade policy was being crafted in order to get fees for customs agents.

Trial lawyers are agents, and their claims are only as valid as those they represent. They argue, of course, that they are champions of malpractice victims. As Anthony Tarricone, president of the trial lawyers association (called the American Association of Justice) put it: “Trial attorneys see first-hand the effects medical errors have on patients and their families. We should keep those injured people in mind as the debate moves forward.” But under the current system, 54 cents of the malpractice dollar goes to lawyers and administrative costs, according to a 2006 study in the New England Journal of Medicine. And because the legal process is so expensive, most injured patients without large claims can’t even get a lawyer. “It would be hard to design a more inefficient compensation system,” says Michelle Mello, a professor of law and public health at Harvard, “or one which skewed incentives more away from candor and good practices.”

Trial lawyers also suggest they alone are the bulwark against ineffective care, citing a 1999 study by the Institute of Medicine that “over 98,000 people are killed every year by preventable medical errors.” But the same study found that distrust of the justice system contributes to these errors by chilling interaction between doctors and patients. Trials lawyers haven’t reduced the errors. They’ve caused the fear.

An effective justice system must reliably distinguish between good care and bad care. But trial lawyers trade on the unreliability of justice. It doesn’t matter much whether the doctor did anything wrong—a lawyer can always come up with a theory of what might have been done differently. What matters most is the extent of the tragedy and that a case holds potential for pulling on a jury’s heartstrings.

Former Sen. John Edwards, for example, made a fortune bringing 16 cases against hospitals for babies born with cerebral palsy. Each of those tragic cases was worth millions in settlement. But according to a 2006 study at the National Institutes of Health, in nine out of 10 cases of cerebral palsy nothing done by a doctor could have caused the condition.

Unreliable justice is like pouring acid over the culture of health care. One in 10 obstetricians have stopped delivering babies, unable to pay malpractice premiums on the order of $1,000 per baby, according to the American College of Obstetricians and Gynecologists (ACOG). Some hospitals, including Methodist Hospital and Chestnut Hill Hospital in Philadelphia, have stopped delivering babies altogether; and the number of unnecessary caesarian sections have increased to the detriment of the health of mothers, according to the ACOG.

Trial lawyers scoff at the idea of special health courts. “First you have a court for doctors,” a spokesperson for the trial lawyers, Linda Lipsen, recently said, “and then what? A court for plumbers?” But America has a long tradition of special courts for situations where expertise and consistency are important—bankruptcy courts, tax courts, workers compensation tribunals, vaccine liability tribunals, Social Security tribunals, and many more.

Trial lawyers often claim that any alternative to the current medical malpractice justice system, such as specialized health courts, will only make it more difficult for injured patients to seek justice. But that’s why you start with a pilot project. If these courts are unfair they will be rejected. But if they succeed—that is, are fairer to patients and doctors—they could provide a solid foundation for rebuilding an effective, less costly health-care system than we have today.

Exactly, Ed: the power of the purse is how a GOP-controlled Congress would have to cut the legs out from under Obamacare, in the interim until a new president can be elected.

One key vulnerability of the O-care plan is that cuts to Medicare start immediately. Although Medicare does need to be reformed, this is one of the most unconscionably cynical aspects of the left’s concept. It amounts to treating the elderly, our parents and grandparents, like dirt, on the cynical calculation that they can’t fight back and no one else will care.

Hogwash. We do care. The Republicans should use that for all it’s worth. It’s perfectly consistent with the Republican position, after all, which has never been that today’s elderly need to carry the reforms on their backs. The reform of Medicare needs to start with the younger demographic.

Health-care collectivization proposals that produce cuts in Medicare services while raising taxes and increasing the dependency of everyone else do NO ONE any good — except government bureaucrats and politicians excited about the prospect of incumbency-for-life, guaranteed by a dependent, rent-seeking populace.

I like Cantor’s analysis that Reid releasing nine Democratic Senators in tough States to vote “no” during reconciliation could cause some House Representatives from those same states to vote “no”. They all need to be on the same sheet of music if they’re going to justify their votes to their constituents in November. It’s not going to look good for a Representative to argue that passing O’Care was a good thing for his constituents when their Senator is arguing exactly the opposite. These are the delicious conflicts caused by this whole fiasco – courtesy of Raum and Obama.

I don’t see this passing. This requires some serious legislative “jujitsu” … and it’s all going to have be performed flawlessly on greased stainless steel flooring.

Jimbo3 on March 1, 2010 at 2:49 PM
Which is easily gotten around by filing in the federal courts.

MarkTheGreat on March 1, 2010 at 3:44 PM

–Except for a few unusual circumstances, you can only file in the federal courts if no party to the lawsuit is a resident of a state where another party is a resident. So you’re unlikely to be able to file in federal court in most medical malpractice cases. And even if you file in federal court, the court will apply the appropriate state laws to medical malpractice cases. So, no, filing in federal court doesn’t work in these cases generally.

Also – at some point – you liberals are going to have to put down the old saw of the “Commerce Clause”. By a liberal’s reasoning – the only parts of the Constitution needed to justify their entire agnenda are the Commerce Clause and the Pre-amble of the Constitution which mentions General Welfare.

–I’ve explained before the Supreme Court cases and why I think this will be upheld. We just disagree.

Jimbo3 on March 1, 2010 at 4:15 PM

Just tell me jimbo, does the federal government have any restrictions on its powers? If so, where are those restrictions detailed? Can it spend money on anything it wants to? Is that what the Constitution says?

It probably is true that more constitutional law scholars believe that the mandate is constitutional than believe the opposite. But this simply reflects the fact that most constitutional law professors, like most other academics, are overwhelmingly left of center.

It probably is true that more constitutional law scholars believe that the mandate is constitutional than believe the opposite. But this simply reflects the fact that most constitutional law professors, like most other academics, are overwhelmingly left of center.

Jimbo3 on March 1, 2010 at 4:44 PM

Truth is not a matter of consensus, regardless of political affiliation. Read his arguments, then you have a basis for responding.

But let us say, for the sake of argument, that it is Constitutional. Is it just, is it moral? On that, we no doubt have an irreconcilable disagreement.

Hence, the way forward will always be elect people prone to govern from a center right mindset. It reflects the majority of the country. Why can’t this be accomplished? Is it because the masses have been dumbed down too far to comprehend, or could it be we were too busy with our own lives to care?

Jimbo, I first must say nice job on coming up with the actual data concerning states that cap non-economic jury awards in medical malpractice. You were challenged and rose to it.

That being said, I also know you are a doctrinaire leftist ideologue, and a question was posed upthread that you haven’t answered. I’d like an answer as well, if you think you’re up to it.

If the federal govt has the right to force me to buy a product (any product) from a private company, and this is upheld as constitutional, what limits exist on the power of the feds to compel me to do anything they demand? Are there any limits at all that can’t be gotten around by invoking the commerce clause? If you think there are such limits, please point out one or two examples, because at this point I don’t see that possibility existing.

Jimbo, I first must say nice job on coming up with the actual data concerning states that cap non-economic jury awards in medical malpractice. You were challenged and rose to it.

That being said, I also know you are a doctrinaire leftist ideologue, and a question was posed upthread that you haven’t answered. I’d like an answer as well, if you think you’re up to it.

If the federal govt has the right to force me to buy a product (any product) from a private company, and this is upheld as constitutional, what limits exist on the power of the feds to compel me to do anything they demand? Are there any limits at all that can’t be gotten around by invoking the commerce clause? If you think there are such limits, please point out one or two examples, because at this point I don’t see that possibility existing.

runawayyyy on March 2, 2010 at 11:21 AM

–Thanks. I don’t consider myself a doctrinaire leftist ideologue, BTW. I did vote for McCain and in the Texas primary. I think that the federal government probably can require you to purchase commercial items (or pay a fine/tax) so long as those items (or the economic impact of those items) significantly affect interstate commerce. The only limits I can see relate to religious objections or economic impacts or items which are localized to one state. I think the US Supreme Court doesn’t need to go that far to uphold the individual mandate, so it won’t say that in its decision (it will say that there’s something special about insurance and the effect of health insurance).

–Thanks. I don’t consider myself a doctrinaire leftist ideologue, BTW. I did vote for McCain and as a Republican in the Texas primary. I think that the federal government probably can require you to purchase commercial items (or pay a fine/tax) so long as those items (or the economic impact of those items) significantly affect interstate commerce. The only limits I can see relate to religious objections or economic impacts or items which are localized to one state. I think the US Supreme Court doesn’t need to go that far to uphold the individual mandate, so it won’t say that in its decision (it will say that there’s something special about insurance and the effect of health insurance).

One promise should be that if the dims pass ObamaCare by reconciliation, the Republicans’ first order of business will be to repeal it via reconciliation if necessary. If it was good enough to get the fiasco passed, it’s certainly good enough to be used to torpedo ObamaCare…

The Republicans can refuse to pass a budget that funds any part of ObamaCare. They can pass budgets saying “no funds from this bill may be spent on” and then list any new committees the law created, etc.

So all they need is to take over the House, with a majority that’s willing to shut down the Federal Government rather than fund ObamaCare.